United States District Court, W.D. New York
For Plaintiff: Durrod Watkins, pro se, Rochester, New York.
For Defendant: Daniel Moore, Harris Beach LLP, Pittsford, New York.
DECISION AND ORDER
CHARLES J. SIRAGUSA, District Judge.
Durrod Watkins ("Plaintiff") was employed by Rochester General Hospital ("RGH") as a member of the Environmental Services team. RGH terminated Plaintiff's employment, and he commenced this action for employment discrimination. Now before the Court is Defendant's motion (Docket No. [#8]) to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The application is granted and this action is dismissed.
At the outset the Court must determine what facts it can consider when ruling upon Defendant's motion. It is of course well-settled that in resolving a 12(b)(6) motion, the Court is limited in what it can consider. See, e.g., Vasquez v. City of New York, No. 10 Civ. 6277(LBS), 2012 WL 4377774 at *1 (S.D.N.Y.Sep. 24, 2012) ("[T]he [general] rule [is] that documents outside the pleadings cannot be considered in a 12(b)(6) motion."). On a 12(b)(6) motion,
the complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, which renders the document integral to the complaint.
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir.2002) (citations omitted). In considering whether a document is "integral" to the complaint, "a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough." Id., 282 F.3d at 153 (citation and footnote omitted). When the action involves federal discrimination claims that were filed with an administrative agency before they were brought here, the Court may consider the administrative record when ruling on a 12(b)(6) motion. See, Holowecki v. Federal Express Corp., 440 F.3d 558, 565 (2d Cir. 2006) ("In reviewing the Rule 12(b)(6) ruling, it is proper for this court to consider the plaintiffs relevant filings with the EEOC.]"); see also, Russell v. Aid to Developmentally Disabled, Inc., No. 12 CV 389(DRH)(AKT), 2013 WL 633573 at *14, n. 8 (E.D.N.Y. Feb. 20, 2013) ("It is appropriate for the Court to consider [NY]SDHR filings in the context of a Rule 12(b)(6) motion because they are public documents filed in the context of administrative agency proceedings, and because they are integral to plaintiff's claims.") (citations omitted).
Between August 31, 2010 and September 19, 2012, Plaintiff worked as a member of the housekeeping staff at RGH. Plaintiff maintains that during the first year of his employment he was recognized by RGH for good job peformance. However, on September 19, 2012, Defendant terminated Plaintiff's employment. The circumstances leading to the termination of Plaintiff's employment had been evolving for several months prior to that, according to the administrative record. Specifically, Plaintiff had various performance deficiencies, such as arriving late for work, taking excessive breaks and talking on his cell phone during work hours, which, in March 2011, led Defendant to provide Plaintiff with "extensive, informal coaching on all of these issues." Plaintiff's performance deficiencies continued, and in January, 2012, Defendant gave Plaintiff a written warning, after he arrived late for work and took improper meal breaks. Plaintiff's problems persisted, and that in April, 2012, Defendant placed him on a performance improvement plan ("PIP"). In connection with the PIP, Plaintiff was required to submit an improvement plan and to meet regularly with his supervisor. In both May and June, 2012, Defendant recorded further problems with Plaintiff's performance, involving sitting in a chair and talking on his cell phone, being absent during his shift and failing to report for work after punching in on the time clock. Additional problems occurred in August, 2012, and Defendant extended the term of the PIP, and imposed additional monitoring requirements. For example, the extended PIP required Plaintiff to inform the Unit Secretary or Charge Nurse before leaving and after returning to his work area, and to utilize a computerized program that monitored his work. Despite these measures, the record indicates that Plaintiff was "tardy and took an extended meal break on virtually every single work day between August 31 and September 26." On September 28, 2012, Plaintiff's supervisors and a representative from Defendant's Human Resources ("HR") Office completed a recommendation that Plaintiff's employment be terminated, and forwarded it to RGH's HR Director. While that recommendation was being considered, on October 3, 2012, Plaintiff again was tardy for work, and was also seen in the facility parking garage during his shift, which prompted Defendant to terminate his employment later that day.
On October 22, 2012, Plaintiff filed a discrimination complaint with the New York State Division of Human Rights ("NYSDHR"). On the form complaint, Plaintiff checked only the box indicating that he was discriminated against on the basis of "race/color or ethnicity." He did not check boxes, for example, "retaliation" or "disability." Plaintiff indicated that the discriminatory acts consisted of terminating his employment and giving him negative performance reviews. In the hand-written narrative section of the complaint, Plaintiff indicated, in pertinent part, that the discrimination was caused by his supervisors, "Matt and Tony, " and consisted of being placed "under a certain type of surveillance [and] being followed on my breaks." The narrative further indicated that such scrutiny was improper, since Plaintiff had an "excellent work ethic."
In response to Plaintiff's complaint, Defendant submitted a response to the NYSDHR that detailed the reasons for the termination of Plaintiff's employment, as set forth above.
On December 1, 2012, Plaintiff submitted an 8-page "rebuttal" to the NYSDHR. Plaintiff stated that he was discriminated against for being "a black male, " because he believed that he had a good work ethic and that his performance was improving. Plaintiff further indicated that he did not have complaints about him until Tony Zapata ("Zapata") was hired to supervise the ward on which Plaintiff worked, and that most of the complaints about him came from Zapata. Plaintiff indicated that he actually was not bothered by having to use the aforementioned software program, which monitored his work, and that he understood why he and other employees were required to do so. Plaintiff complained, though, that such computer program sometimes resulted in housekeeping staff being blamed for other employees' mistakes. Plaintiff further stated, in response to Defendant's assertion that he often was delayed in reporting for work after punching in on the time clock, that he believed that he had a "grace period." Additionally, Plaintiff stated that it was improper for Defendant to place him on the extended PIP, since Defendant's records showed that his work performance "appeared to improve briefly in late June and July, " "but for some reason they continued their surveillance/monitoring." Plaintiff further indicated that it was improper for Defendant to require him to report to the Charge Nurse before leaving his work area, since he was the only employee required to do so, and it made him feel "like a criminal who has to report to his probation officer." Plaintiff's rebuttal did not mention anything concerning sex-based or disability-based discrimination or retaliation.
In his cover letter submitted with the rebuttal, Plaintiff stated that all he wanted was "a chanceto be able to do my job right and be treated equally. I didn't see how important this chance is but now I understand clearly and with another opportunity I can show improve [sic] ...